The three-judge panel in Thomas More Law Center v. Obama voted 2-1 in upholding the provision, which requires some individuals to start carrying health care insurance in 2014. Judge Jeffrey Sutton, appointed to the Sixth Circuit by President George W. Bush, concurred in the judgement upholding the health care law.

“Congress had a rational basis for concluding that the minimum coverage provision is essential to the Affordable Care Act’s larger reforms to the national markets in health care delivery and health insurance,” Judge Boyce F. Martin Jr., wrote. The panel upheld a lower court opinion that found the minimum coverage provision did not run afoul of Congress’s power to regulate commerce.

The Sixth Circuit also dismissed the argument that the minimum coverage provision of the Affordable Care Act (ACA) does not regulate economic activity, writing, “The minimum coverage provision regulates activity that is decidedly economic.”

“The Act considered as a whole makes clear that Congress was concerned that individuals maintain minimum coverage not as an end in itself, but because of the economic implications on the broader health care market,” Martin wrote. “Virtually everyone participates in the market for health care delivery, and they finance these services by either purchasing an insurance policy or by self-insuring. Through the practice of self-insuring, individuals make an assessment of their own risk and to what extent they must set aside funds or arrange their affairs to compensate for probable future health care needs.

“Thus, set aside the Act’s broader statutory scheme, the minimum coverage provision reveals itself as a regulation of the activity of participating in the national market for health care delivery, and specifically the activity of self-insuring for the cost of these services,” Martin continued.

Recently at the ACS 10th Anniversary National Convention, a panel of constitutional law experts and litigators explored the constitutionality of the minimum coverage provision. Indiana University law school professor Dawn Johnsen said the constitutionality of the provision, which is integral to other provisions of the law, especially the one that bars insurance companies from denying health coverage to people with pre-existing conditions, is an easy call. Johnsen said longstanding precedent regarding Congress’s commerce clause power allows for this type of regulation.

Walter E. Dellinger III, partner at O’Melveny & Myers, and a former Acting U.S. Solicitor General, also defended the constitutionality of the minimum coverage provision. Dellinger took umbrage with claims from right-wing advocates that the ACA, and in particular, its minimum coverage provision, is an overreach by the federal government that greatly erodes liberty.

Dellinger said, “We hear talks about government intrusions into health care – this represents an extraordinary step about liberty. And I just cannot, any longer, refrain from making the observation that it is really ironic and disturbing to hear that liberty lecture come from people talking about government takeover of medical care, many of whom would legislate the imposition upon women of unnecessary waiting periods, government scripted lectures, compulsory sonogram viewings, and government mandated unsafe medical procedures.”